ORDER

This is a petition assailing the order dated 09.02.206 (Annexure-

P/6) passed by the trial Court in Case No.H.M.A.38-A/14.

2 . Learned counsel for the petitioner contends that respondent/husband have moved a petition under Section 12 of the Hindu Marriage Act on the allegations against the petitioner/wife as regards the impotency. An application under Section 151 of CPC was also moved by the respondent/husband seeking medical examination of the petitioner/wife. The said application has been allowed by the Court below.

3 . Learned counsel contends that the order passed by the Court below on 09.02.2016, suffers from perversity inasmuch as, there could not have been an order of medical examination inasmuch as, the petitioner has not averred in the entire petition as to what efforts were made by the petitioner after marriage to get petitioner/wife medically examined and directly, the petition was filed on the ground that the wife is impotent. Thus, this important aspect of the matter was required to be taken into consideration by the trial Court. Unfortunately, the trial Court proceeded to decide the application in a purely mechanical manner and also allowed the same. It is also contended by the counsel that the order impugned has direct nexus with infringement of right of the wife as regards the privacy and thus, the order impugned could not have been passed.

4 . Per contra, counsel for the respondent submits that the very foundation on the basis of which application under Section 12 of the Hindu Marriage Act, is impotency of the wife and accordingly, in order to substantiate the said ground, the medical examination of the wife is necessary. Accordingly, the application under Section 151 of CPC was moved before the Court below, which has been allowed vide impugned order dated 09.02.2016.

5. Learned counsel contends the trial Court has rightly allowed the said application inasmuch as, in order to acertain as to whether the petitioner's wife is impotent or not, her medical examination is indispensable.

6 . The counsel for the respondent has placed reliance on the decision of this Court in the case of Smt. Surbhi Trivedi vs. Gaurav Trivedi (M.P. No.4820/2018) and submitted that no interference is warranted.

7. Heard rivals submissions and perused the record.

8. A perusal of the petition filed under Section 12 of Hindu Marriage Act by the respondent/husband reflects that in paragraph 3 there are specific averments that the marriage solemnized between the petitioner and respondent has not been consummated as the wife is impotent.

9. In paragraph 4 of the petition, it is further elaborated that the wife refused to cohabit on one or the other pretext and therefore, there were no physical relations between the husband and wife.

1 0 . In paragraph 5 of the petition, it is contended that the fact regarding impotency of the wife came into notice when, she was examined by one Dr. S.C. Saxena, Rewa on 14.02.2005 but, just in order to avoid humiliation' the said fact was not disclosed by the husband before anyone. Thereafter, in the prayer clause, it is submitted by the respondent/husband that if upon medical examination, the wife is found to be impotent, the marriage be declared annulled.

11. In order to substantiate the said application, the respondent/husband moved an application under Section 151 of CPC and prayed that the petitioner/wife be examined by the medical expert so as to find out as to whether she is impotent or not? The said application has been allowed by the Court below.

12. The Apex Court in the case of Sharda vs. Dharampal 2003 (4) SCC 493 has held in paragraphs 80 and 81 as under:-

80. So viewed, the implicit power of a court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot be held to be violative of one's right of privacy.

81. To sum up, our con